Enterprise Act 2002 (c. 40)

SCHEDULES

Section 70A

[F1 Schedule 6B U.K. Control or influence of a person by a foreign power

Textual Amendments

F1 Sch. 6B inserted (24.5.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(a), Sch. 7 para. 3 (with s. 130(2)(3))

Part 1 U.K. Conditions for control or influence

1 (1) A foreign power is able to control or influence the policy of a person for the purposes of section 70A if one or more of the following conditions is met. U.K.

(2) Condition 1 is that the foreign power holds, directly or indirectly, any of the shares in the person.

(3) Condition 2 is that the foreign power holds, directly or indirectly, any of the voting rights in the person.

(4) Condition 3 is that the foreign power holds the right, directly or indirectly, to appoint or remove an officer of the person.

(5) Condition 4 is that the foreign power has the right or ability to direct, control or influence to any extent, the person’s policy or activities (in whole or in part, and whether directly or indirectly), despite not meeting condition 1, 2 or 3.

(6) Condition 5 is that—

(a) the trustees of a trust, or the members of a partnership, unincorporated association or other entity, that is not a legal person under the law by which it is governed, would, if they were a foreign power, meet one or more of conditions 1 to 4 (in their capacity as such) in relation to the person, and

(b) the foreign power has the right or ability to direct, control or influence to any extent the activities of that trust or entity (in whole or in part, and whether directly or indirectly), or has any other interest in, or right over or in relation to, the trust or entity, or any of the trustees of the trust or the members of the entity, whether directly or indirectly.

2 U.K. In this Schedule, “officer”—

(a) in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;

(b) in relation to a partnership, means a partner, a person purporting to act as a partner or a person concerned in the management or control of the partnership or who purports to act in the capacity of a person so concerned;

(c) in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned.

Part 2 U.K. Interpretation

Interpretation U.K.

3 This Part makes provision about the interpretation of this Schedule.

Joint interests U.K.

4 If a foreign power holds a share or right jointly with another person (whether or not a foreign power), each of those persons is to be taken to hold that share or right.

Joint arrangements U.K.

5 (1) If shares or rights held by a foreign power and shares or rights held by another person (whether or not a foreign power) are the subject of a joint arrangement between those persons, each of those persons is to be taken to hold the combined shares or rights of both persons.

(2) A “joint arrangement” is an arrangement between the holders of shares (or rights) that they will exercise all or substantially all the rights conferred by their respective shares (or rights) jointly in a way that is pre-determined by the arrangement.

(3) For the meaning of “arrangement”, see paragraph 12.

Calculating shareholdings U.K.

6 (1) In relation to a person that has a share capital, a reference to holding any of the shares in that person is to holding any shares comprised in the issued share capital of that person.

(2) In relation to a person that does not have a share capital, a reference to holding any of the shares in that person is to holding a right to share to any extent in the capital or, as the case may be, profits of that person.

Voting rights U.K.

7 (1) A reference to the voting rights in a person is to the rights conferred on shareholders in respect of their shares (or, in the case of a person not having a share capital, on members) to vote at general meetings of the person on all or substantially all matters.

(2) In relation to a person that does not have general meetings at which matters are decided by the exercise of voting rights, a reference to exercising voting rights in the person is to be read as a reference to exercising rights in relation to the person that are equivalent to those of a person entitled to exercise voting rights in a company.

8 In applying this Schedule, voting rights in a person held by the person itself are to be disregarded.

Shares or rights held “indirectly” U.K.

9 (1) A foreign power holds a share “indirectly” if the foreign power has any stake in a person and that person—

(a) holds the share in question, or

(b) is part of a chain of persons—

(i) each of which (other than the last) has any stake in the person immediately below it in the chain, and

(ii) the last of which holds the share.

(2) A foreign power holds a right “indirectly” if the foreign power has any stake in a person and that person—

(a) holds that right, or

(b) is part of a chain of persons—

(i) each of which (other than the last) has any stake in the person immediately below it in the chain, and

(ii) the last of which holds that right.

(3) For the purposes of sub-paragraphs (1) and (2), a person (“A”) has “any stake” in another person (“B”) if—

(a) A holds any shares or voting rights in B,

(b) A is a member of B and has the right to appoint or remove an officer of B,

(c) A is a member of B and controls alone, or pursuant to an agreement with other shareholders or members, any of the voting rights in B, or

(d) A has the right or ability to control or influence B to any extent, despite not being within paragraph (a), (b) or (c).

Shares held by nominees U.K.

10 A share held by a person as a nominee for another is to be treated as held by the other (and not by the nominee).

Rights treated as held by person who is able to control their exercise U.K.

11 (1) Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it).

(2) A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only—

(a) by that person,

(b) in accordance with that person’s directions or instructions, or

(c) with that person’s consent or concurrence.

Arrangements U.K.

12 (1) For the purposes of this Schedule, “arrangement” includes—

(a) any scheme, agreement or understanding, whether or not it is legally enforceable, and

(b) any convention, custom or practice of any kind.

(2) But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise).

Rights exercisable only in certain circumstances etc U.K.

13 (1) Rights that are exercisable only in certain circumstances are to be taken into account only—

(a) where the circumstances have arisen, and for so long as they continue to obtain, or

(b) when the circumstances are within the control of the person having the rights.

(2) But rights that are exercisable by an administrator or by creditors while a person is in relevant insolvency proceedings are not to be taken into account even while the person is in those proceedings.

(3) “Relevant insolvency proceedings” means—

(a) administration within the meaning of the Insolvency Act 1986,

(b) administration within the meaning of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or

(c) proceedings under the insolvency law of another country or territory during which a person’s assets and affairs are subject to the control or supervision of a third party or creditor.

(4) Rights that are normally exercisable but are temporarily incapable of exercise are to continue to be taken into account.

Rights attached to shares held by way of security U.K.

14 Rights attached to shares held by way of security provided by a person are to be treated for the purposes of this Schedule as held by that person—

(a) where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions, and

(b) where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests.

Part 3 U.K. Power to amend circumstances in which there is control or influence

15 (1) The Secretary of State may by regulations make provision— U.K.

(a) to change (by increasing or decreasing) the proportion of shares or rights which a foreign power must hold in a person carrying on a newspaper enterprise, whether directly or indirectly, in order for the foreign power to be able to control or influence the policy of a person for the purposes of section 70A;

(b) to change (by increasing or decreasing) the proportion of shares or rights which is to be held by persons in a chain of persons for the purposes of determining whether shares or rights are held indirectly;

(c) about assumptions which are to be made when determining whether a foreign power is able to control or influence the policy of a person, including assumptions framed by reference to the ownership of shares or voting rights by any person;

(d) about the extent to which a foreign power needs to be able to control or influence the policy of a person in order to control or influence that policy for the purposes of section 70A, including provision about a foreign power that is already able to control or influence the policy of a person to some extent being able to control or influence that policy to a greater extent;

(e) to change or supplement Part 1 of this Schedule so as to include circumstances (for example, circumstances involving more complex structures) that give a foreign power a level of control or influence in relation to the policy of a person broadly similar to the level of control or influence given by the conditions in paragraph 1;

(f) in consequence of any provision made by virtue of paragraph (e), to change or supplement Part 2 of this Schedule so that circumstances specified in that Part in which a person is to be regarded as holding an interest in another person correspond to any of the conditions in paragraph 1, or would do so but for the extent of the interest.

(2) The provision that may be made under this paragraph, read with section 124(2)(a), includes—

(a) different provision for different descriptions of foreign power, and

(b) different provision for different persons or descriptions of person in a chain of persons.

(3) Regulations under this paragraph may, among other things—

(a) confer a discretion on the CMA;

(b) make provision having effect on or after 13 March 2024.]